LOCAL NO. 7889 of the UNITED
PAPERWORKERS INTERNATIONAL UNION,
AFL-CIO, CLC and the UNITED
PAPERWORKERS INTERNATIONAL UNION,
AFL-CIO, CLC

and

NORDBERG, INC.

Clintonville, Wisconsin

Case 6

No. 53340

A-5422

Appearances:

Mr. Richard Luetschwager, International Representative,
United Paperworkers
International Union, 1008 Brown Street, Wausau, Wisconsin 54403, for Local No.
7889 of the United Paperworkers International Union, AFL-CIO, CLC and the
United Paperworkers International Union, AFL-CIO, CLC, referred to below as
the Union.

The Union and the Company are parties to a collective bargaining agreement which
was
in effect at all times relevant to this proceeding and which provides for the final and binding
arbitration of certain disputes. The Union requested, and the Company agreed, that the
Wisconsin
Employment Relations Commission assign an Arbitrator to resolve a dispute reflected in
grievances filed by James Tomsovic and Dale Lohrentz. The Commission assigned
Coleen A.
Burns to serve as Arbitrator. Hearing on the matter was set for July 10, 1996. Due to the
unavailability of Arbitrator Burns, the Commission, with the agreement of the parties,
assigned
Richard B. McLaughlin to replace her. Hearing was conducted on July 10, 1996, in
Clintonville,
Wisconsin. A transcript of that hearing was taken and provided to the Commission on July
16,
1996. The parties filed briefs by September 9, 1996.

ISSUES:

The parties were unable to stipulate the issues for decision. I have determined the
record
poses the following issues:

Did the Company institute the vacation pay calculation in a
timely manner as proposed?

If not, what should the remedy be?

RELEVANT CONTRACT LANGUAGE

ARTICLE XVI (VACATIONS)

Section 1. Eligibility.

(a) The following schedule will be used
to
determine vacation time for employees covered
by this contract, according to the length of service and number of hours worked in the
preceding
calendar year (subject to exceptions for only one year of service).

(b) Definition of terms as applicable to this Article:

(1) Calendar year - means the period
from
January 1 to December 31.

. . .

Section 2. Vacation Pay.

(a) Effective January 1, 1996, the
vacation pay rate will be calculated based on the prior
year's gross wages (less any profit sharing) divided by the number of weeks in that year.
This
rate will be paid if it is higher than the employee's current rate of pay at the time of his/her
vacation.

. . .

BACKGROUND:

Tomsovic filed Grievance 95-4 on October 3, 1995. (1) The grievance states the
"COMPLAINT" thus:

Having received check for pay period ending 9/24/95 I received
32 hours vacation pay
computed at my base hourly rate. I feel that this is incorrect and it should be computed on
the basis of my 1994 avg hourly wage for the
newest union company agreement entered into 9/15/95. There were no
stipulations that this new
method would incur on any other date other than the date of said agreement.

Lohrentz filed Grievance 95-6 on October 13. His grievance states the
"COMPLAINT"
thus:

Did not receive correct pay for vacation on Sept 28 & 29
according to new contract
agreement.

James Grzeca, the Company's Operations Manager, answered each grievance thus:

Grievance denied. During negotiations, it was discussed how the
calculation would be made
on Jan. 1. The parties involved in negotiations agree that this change would be effective on
Jan.
1, 1996.

The facts underlying the grievance are not in dispute. The "newest" or "new"
agreement
referred to on the grievances is in effect from September 16, 1995 through September 15,
1998.

The Union ratified this agreement at a meeting conducted on Friday, September 15.
The
Union's bargaining committee put before its membership a document entitled
"MODIFICATIONS
TO THE PREVIOUS CONTRACT AS AGREED TO BY THE BARGAINING
COMMITTEE
AND THE COMPANY." This document, referred to below as the Modifications List, was
prepared by the Company, consisted of nine pages and summarized the changes to Article
XVI,
Section 2(a), thus:

Page 23. New

Section 2.
Vacation Pay.

(a) The vacation pay rate will be
calculated based on the prior year's average weekly
pay for each employee. It will be adjusted for weeks off for layoff, Worker's Comp, A
& S, and
family leave. Depending on the vacation pay rate, it may also be adjusted for up to ten
unpaid
excused days.

The Union also distributed to its membership a work sheet which set forth the
language
of the revised Article XVI, Section 2(a), and detailed the implementation of that language
thus:

W-2 earnings minus A & S (5 or more paid days)
minus profit sharing

52 minus full weeks for family leave, U.C.,
W.C., A & S

equals average weekly pay

IF this weekly rate / 40 is less than the hourly rate on Jan. 1,
then the records will be
reviewed and unpaid excused days will be subtracted from the denominator in the equation
and
a new rate will be calculated.

The calculated vacation pay rate will be used for the entire
calendar year.

Example

A

W-2 Earnings

$35,398

Profit Sharing

-$ 950

A & S

-$
900 3 weeks

Annual pay

$33,548

divided by

49

= Weekly Pay

$684.65

divided by

40

= Hourly Rate

$ 17.12

Compare to

$ 13.90 Jan
1.

$13.50 x 1960 =

$26,460

$20.25 x 350 =

$
7,088

Total

$33,548

Neither of these documents stated the date that the changes to Article XVI, Section
2(a)
would become effective. None of the employes at this meeting questioned when the
provision
would become effective, and none of the Union's bargaining team stated when the changes
would
become effective.

The initial vote taken by the Union on the proposed changes to the labor agreement
did not
produce a ratification of the proposed agreement. Tomsovic, Lohrentz and certain other
Union
members left the meeting after this vote. The Union's Chief Spokesman, Donald Schaeuble,
however, phoned Grzeca to advise him of the vote. After they had discussed certain
revisions
to the rejected tentative agreement, the Union took another vote and a 1995-98 agreement
was
ratified. On November 9, 1995, Company and Union representatives signed the 1995-98
labor
agreement.

Tomsovic and Lohrentz did not learn of the ratified agreement until the Monday
following
the September 15 meeting. Both took vacation between the time the agreement was ratified
and
its execution on November 9. The Company's refusal to calculate their vacation pay
effective
September 15 prompted the grievances set forth above.

The Collective Bargaining Preceding the September 15 Meeting

Article XVI, Section 2(a) of the 1992-95 labor agreement reads thus:

Vacation pay shall be figured on the employee's straight time
hourly wage rate in effect at the
time of his/her vacation. A second or third shift employee's straight time hourly wage rate
includes the shift premium.

The Union made the initial proposal to modify this language. That initial proposal
reads
thus:

The Union requests that all vacation pay be based on 40 hours or
2% of the employees (sic)
wages which ever is greater.

After some give and take, the proposal reached the form stated in the Modification
List.

It is undisputed that the parties discussed the effective date of the changes in the
vacation
language. Donald DeWinter, Rick Utke and Robert Briske all served on the Union's
negotiating
committee. The testimony of each witness varies on the depth of the discussions concerning
the
effective date of the changes to Article XVI, Section 2(a). DeWinter and Utke agreed that
the
January 1, 1996 date was discussed during bargaining. Each of them acknowledged that
there
was, during bargaining, no Union objection to a January 1, 1996 implementation date. Each
also
acknowledged that the Union did not demand, during bargaining, a September 15
implementation
date.

Grzeca and Linda Arndt, the Company's Human Resource Administrator, testified in
depth
concerning those discussions. Arndt served on the Company's negotiating team, and signed
the
1995-98 agreement for the Company. She is the person responsible for the implementation
of
the revised benefit. She asked when she should put the new benefit into effect. She noted
that
Schaeuble and DeWinter affirmed that the date for implementation would be January 1,
1996.

Schaeuble confirmed that the January 1, 1996 implementation date was discussed by
the
parties during bargaining. The implementation date reflected that the revised benefit would
be
based on the W-2 form for the prior year.

Grzeca testified that at no time in these discussions did the parties discuss using a
W-2
form from any year prior to 1996.

Events Following the Filing of the Grievances

After Arndt learned of the filing of the Tomsovic grievance, she brought the matter
to
Grzeca. Grzeca filed his answer to the grievance on October 4, but was concerned about the
misunderstanding he perceived to underlie the grievance. He contacted DeWinter and
Schaeuble
and one other Union representative to determine if they shared Tomsovic's view of the
effective
date for the changes to Article XVI, Section 2(a). Each of these representatives confirmed
that
they understood the effective date for the changes to be January 1, 1996. Schaeuble,
DeWinter,
Briske and Utke all signed the 1995-98 agreement on November 9.

Further facts will be set forth in the DISCUSSION section below.

THE UNION'S POSITION:

After a review of the evidence and arbitral precedent, the Union contends that the
issue
posed by the grievance turns on five essential points. First, the Union notes that the "exact
date
that the vacation pay benefit would go into effect was never discussed at the September 15,
1995,
ratification meeting." Second, the Union urges that arbitral precedent and common practice
establish that where an effective date for a benefit is not expressly stated, bargaining parties
typically understand that the "effective date of the benefit is upon ratification." This
understanding is in fact the past practice of the parties to this agreement. Third, the Union
notes
that the filing of the grievance preceded the execution of the labor agreement, thus
establishing
that the Company was aware of a dispute over the effective date of the vacation benefit. The
Union draws from the third point to establish the fourth. That point is that the parties'
mutual
intent in negotiating the provision cannot be established through the terms of the labor
agreement
alone. Rather, the intent of the parties must account for the presence of the dispute raised
prior
to the execution of the labor agreement. Finally, the Union argues that the Company is the
author
of the Modifications List. It follows from this, according to the Union, that the Company "is
the
responsible party of that document."

The Union concludes that "the withholding of the vacation pay benefit from
the grievant
was improper and should be reversed." From this it necessarily follows, according to the
Union,
that the Grievant should be made "whole for the lost vacation pay." This remedy should, the
Union urges, be extended to all other members of the Local who experienced a similar loss.

THE COMPANY'S POSITION:

After a review of the evidence, the Company argues that the executed labor
agreement
clearly and unambiguously denies the Grievants' claims. Nor can the Modifications List be
used
to alter the agreement's unambiguous terms. The filing of grievances prior to the execution
of
the labor agreement cannot, the Company argues, obscure that "the Agreement was signed
by both
parties," or that the Company's draft of the items modified during negotiations was no more
than
a courtesy.

The parties have, in the past, addressed items of dispute which arose prior to an
agreement's execution. This practice is significant to this case, since the effective date for
vacation pay changes cannot be considered such a dispute. The Company's Human Resource
Administrator must calculate and pay this benefit, was on the negotiating team and insisted
that
a clear understanding be reached on how to implement the benefit. Her understanding was
confirmed by Grzeca's, DeWinter's and Briske's testimony. The Grievants' challenge to the
understanding reached during negotiations is based not on any communication between the
negotiating parties, but on the Grievants' personal opinions. From this, the Company
concludes
that the dispute posed "is not really with management, but is with (the) Union." That
vacation
is calculated on a calendar year basis further underscores how poorly the grievances are
rooted
in fact.

Even if the contract could be considered ambiguous, the Company contends that
bargaining
history establishes that the Union and the Company mutually intended that the vacation
benefit was
to be effective in January, not September. The Company argues that the earlier date cannot
even
be rooted in communications between the Union bargaining team and its membership at the
ratification meeting. The Company then argues that even if the absence of the effective date
from
the Modifications List is considered a mutual mistake, the remedy appropriate to that
mistake,
under arbitral precedent, would be the inclusion of the date in that document. Reformation
of the
contract cannot, according to the Company, be awarded to the Grievants since the
reformation
they seek is to a position never agreed to in bargaining.

The Company concludes that "this grievance (should) be denied in all respects."

DISCUSSION:

I have adopted the Union's statement of the issue as that appropriate to this record.
That
statement leaves the underlying source of the "vacation pay calculation" ambiguous by
questioning whether the calculation was timely "as proposed." This highlights the Union's
contention that the Modifications List fails to state a date for vacation pay implementation
and that
standard practice requires that undated obligations be implemented upon ratification.

This ambiguity may be necessary to the Union's position, but the source which
governs
the timeliness of the vacation pay calculation cannot be considered in doubt. That source is
Article XVI, Section 2(a). Article X, Section (7) underscores this point:

(7) The powers of the arbitrator shall include the authority to
render a final and binding
decision with respect to any dispute brought before the arbitrator, including the right to
modify
or reduce or rescind any disciplinary action taken by the COMPANY but excluding the right
to
amend, modify or alter the terms of this Agreement.

There is no ambiguity in the language of Article XVI, Section 2(a), and thus no call
for
arbitral interpretation of it. Nor is there any ambiguity in the application of Article XVI,
Section
2(a) to the facts of either grievance. Both concern vacation days taken well before the
effective
date of the governing language. The grievances have, then, no support in the labor
agreement and
must be denied.

This conclusion states the inevitable conclusion to the grievances, but it is appropriate
to
tie it more closely to the arguments of the parties.

The Union forcefully points out that the Modifications List contains no effective date,
and
that common practice dictates that undated items are implemented on ratification. This
position
explains the concern of the Grievants and other workers, who interpreted the Modifications
List
to offer more than the executed labor agreement grants. The fundamental difficulty with
these
points is that the Modifications List is not the Labor Agreement. An arbitrator's interpretive
authority, under Article X, extends only to the labor agreement.

The Modifications List could be taken to indicate the labor agreement does not
accurately
codify what the Union ratified. The evidence will not, however, support this. Neither
Grievant,
nor any other unit member present for any vote on September 15, questioned the
implementation
date of Article XVI. Nor did the Union's bargaining committee inform the voting
membership
that such an implementation date was contemplated during negotiations. To have meaning,
any
inaccuracy the grievances point to must be rooted in the bargaining process.

The evidence establishes, however, that there was no ambiguity within the bargaining
process on this point. DeWinter, Briske, Utke and Schaeuble signed the Labor Agreement
on
November 9. Their signatures confirmed, and their testimony affirms, that the express
reference
to an implementation date in Article XVI, Section 2(a) was no mistake. Grzeca and Arndt
confirmed this for the Company both by signing the agreement on November 9 and by their
testimony at hearing.

The evidence thus establishes that the absence of an implementation date in the
Modifications List was no more than an unintended oversight. There is an element in the
testimony of the Grievants which implies that the Union's reworking of the initially rejected
Modifications List was somehow improper. Lohrentz' testimony, however, establishes that
the
initial rejection of a tentative agreement is not necessarily an unusual event. That the
negotiating
team would rework the Modifications List to produce a ratifiable agreement is an indication
not
of deception, but of diligence by those negotiators. That some members chose to leave the
ratification meeting reflects, on this record, no more than their personal choice. Even if
there is
a contractual basis for arbitral examination of the ratification vote, there is no tenable basis
to
conclude that either Union or Company negotiators sought to deceive the voting membership.

The grievances acknowledge the propriety of the ratification by seeking to enforce the
"new" contract which resulted from it. Even if the evidence regarding the discussion of the
new
benefit during bargaining is disregarded, the grievances afford no insight into why the parties
would negotiate, on a calendar based system of vacation accrual, a mid-year implementation
date.

There is, then, no basis to support a conclusion that the parties ever agreed to an
implementation date other than that stated in Article XVI, Section 2(a).

Collective bargaining derives its strength from the organization of employes. For
unions,
this can offer strength in numbers. For employers, this can offer a stability not achievable
through
dealing with individual employes. When the process lives up to its promise, the result is a
collective bargaining agreement which codifies the rights and responsibilities of individuals.
To
be given meaning, that agreement must be rooted in the mutual intent of the bargaining
representatives of each party. Those representatives have the difficult role of balancing
competing
individual interests in a fashion which can benefit all. If an individual employe or manager
can
impose their individual will on a labor agreement, the balancing performed by bargaining
representatives is lost. The agreement can then offer neither party the stability the entire
process
rests on.

Tomsovic acknowledged that his grievance was based on his personal reading of the
labor
agreement. Lohrentz and other employes agreed with his view. This view was, however,
communicated neither to Union nor to Company representatives while collective bargaining
on the point was possible. To grant either grievance would give individuals the power to
overturn
results achieved through collective bargaining. This might grant the Grievants a greater
benefit,
but would undermine the bargaining process by which such benefits are secured and
enforced.

AWARD

The Company did institute the vacation pay calculation in a timely manner as
proposed.